Senate Committee on Intelligence Rules for the Media Regarding National Security Montana (D) Gwen Prowse Hillsborough High School

For more than two centuries, the media and its reporters has adhered to its historic duty of acting as a fourth check on the United States government. Its investigative and informative tactics have been so imperative to the political decency of nation that many have deemed the media “The Fourth Estate”. Backed by the rhetoric of the First Amendment, the media is given minimal limitation on what it can and cannot release to the public. Political figures throughout history have struggled with the leniency of the First Amendment, especially concerning national security, and have subsequently sought to limit the power of this Fourth Estate. However, the press’s role in the US, especially at this time of war and political discontent, is instrumental in representing and informing the public. Persisting to limit the power of the press and its protection of its sources beyond the clause of “clear and present danger” would not only be considered regression to former strides for sedition, it would contradict the very foundation of the United States Constitution and consequently perpetuate national distrust and discontent.

Because of press’ historic effectiveness, the government has had reason to fear the “political mouthpiece”, but has had little to no grounds for limiting its powers. Nonetheless, there have been fervent efforts to do so, particularly at times where national security is threatened, starting with John Adams and the Sedition Act of 1798. While this legislation to make it illegal to “write, print, utter, or publish” any information in opposition to the government was temporary, it encouraged future experimentation with limiting the rights of the First Amendment. More than a century later, similar acts were promulgated at the onset of World War I. Woodrow Wilson’s Espionage Act of 1917 and its amendment, the Sedition Act of 1918 was established to punish anyone who expressed “disloyal, profane, scurrilous, or abusive language" against the government. Subsequently, hundreds of leftist conscientious objectors like Eugene V. Debbs, who claimed that the Espionage and Sedition Acts were unconstitutional, were imprisoned and/or fined. Similarly, in Schenck v. The United States (1919), a unanimous Court decision sentenced Schenck to prison for producing leaflets opposing the draft and highlighting the 13th Amendment stipulation opposing “involuntary recruitment,” claiming it was posing a “clear and present danger” to the nation’s military efforts in a time of war. However, the trend of prosecuting those charged for what was once considered seditious libel was brought to an end in 1964, during The New York Times v. Sullivan trial. This trial repealed the Smith Act of 1940, which was used to forbid any spoken or printed information advocating the overthrow the government during WWII and the Cold War. New York Times v. Sullivan, declared seditious libel unconstitutional suggesting that “the essential distinction is that those to whom the advocacy is addressed must be urged to do something now or in the future, rather than merely believe in something.” The press continued to regain its political voice after Lyndon B. Johnson’s passage of the Freedom of Information Act (1966), which increased accessibility to many government documents once considered confidential. As access to information increased, so did the press’s impact on checking the powers of the government. This became most apparent in Daniel Ellsberg’s release of the Pentagon Papers, which made critical information concerning the Vietnam War accessible to the public. Though government officials attested that the revelation of these documents were detrimental to national security, the Court declared that prior restraints on the release of such documents was unconstitutional, as was withholding them from the public. As a result, the government was held more accountable for its handling of the war. Clinton’s passage of the Electronic Freedom of Information Amendments in 1996 gave further credence to the press and public, requesting that government information (excluding private financial transactions, personnel records, criminal investigation files, and letters used in internal decision making) be accessible online and that government meetings are held publicly.

Though the press finally began regaining it’s investigative freedom in the second half of the 20th century, the implications of the First Amendment have again started to dwindle in the George W. Bush administration. After the disaster on September 11th, the government was forced to find a solution to ensure the protection of its homeland as well as maintain the trust and faith of its people. By imposing the Patriot Act and detaining hundreds of Arab and Muslim immigrants with refusal to divulge any information about them, President Bush was only able to accomplish the latter. The Patriot Act has allowed for the government to, even without reasonable suspicion, search telephone and email communications, medical, and financial records. The act also insinuates that reporters are expected to turn over their sources at will or by issue of subpoenas despite the passage of various state shield laws and implied protections against such a practice. Combined with the Patriot Act, the Homeland Security Act of 2002, allows the Department of Homeland Security to withhold “sensitive but unclassified” information from states and localities on loose grounds. For approximately six years, the government has successfully kept almost all of the information on the subpoenas for withholding enemy combatants at Guantanamo Bay and secret prisons out of the hands of the press and the public. Similarly, Vice President Cheney has exploited the minimal limitations of the press to keep the meetings of his Energy Task Force confidential. Various press links suggest that the meetings were kept secret because they typically consisted of oil tycoons and pseudo-experts on the subject of energy conservation.

In order to simultaneously protect the Fourth Estate and national security, the government must seek what Speaker of the House, Nancy Pelosi calls “proportionality.” Proportionality entails an open-government on all issues excluding those overtly detrimental to national security and the personal welfare of the people. One proposed and potentially effective effort is to strengthen the E-FOIA and its efficiency. Since September 11th, only 1 in 5 of the 149 polled federal agencies have fully adhered to the E-FOIA, whereas others have remained stagnant in issuing reports or have blatantly refused. By passing legislation that demands release within days upon request of federal information, government agencies will be held more accountable for their actions. Moreover, to continue to protect the welfare of the nation and its people, the government must ensure that all information remains open to public access. Exceptions include cases which threaten to national security, personal welfare and privacy, trade relations, criminal investigation and law enforcement, or are strictly excused from divulgence by state or federal law). Next, the press and its reporters must also continue to be protected to entirely uphold the First Amendment. The United States, therefore, must pass a federal shield law to protect reporters from subpoenas that force them to reveal their sources. These subpoenas have severely limited the ability for the press to function accordingly. Unless the withheld information poses “clear and present danger” to national security or an individual, a reporter deserves legal protection. Lastly, to ensure that these proposed laws are abided to preserve the Fourth Estate, the other three estates of government must act as checks on one another. Most importantly, the Judiciary must constantly review the constitutionality of bills that limit the flow of unclassified information and media access to ensure that history does not regress to the Sedition and Espionage acts from nearly a century ago.